No



No. COA04-216

NORTH CAROLINA COURT OF APPEALS

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)

State of North Carolina )

) From New Hanover County,

v. ) 03 CRS 844-853; 03 CRS 1605-1607

)

Harold Boyd, Jr., )

)

Defendant/Appellee )

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DEFENDANT/APPELLEE'S BRIEF

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INDEX

TABLE OF CASES AND AUTHORITIES..................................................3

STATEMENT OF THE CASE........................................4

STATEMENT OF THE FACTS.......................................5

ARGUMENT.....................................................9

I. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY HEARING THE DEFENDANT’S WRITTEN PRETRIAL MOTION TO SUPPRESS.........................................9

II. THE TRIAL COURT’S DETERMINATION THAT THE DEFENDANT HAD STANDING TO MOVE TO SUPPRESS THE EVIDENCE FOUND IN THE FORD EXPLORER WAS SUPPORTED BY COMPETENT EVIDENCE AND SHOULD BE UPHELD ON APPEAL............................12

III. THE TRIAL COURT’S DETERMINATION THAT THE SEARCH OF THE FORD EXPLORER WAS A VIOLATION OF THE DEFENDANT’S FOURTH AMENDMENT RIGHTS WAS SUPPORTED BY COMPETENT EVIDENCE AND SHOULD BE UPHELD ON APPEAL............................18

CONCLUSION...................................................23

CERTIFICATE OF SERVICE AND FILING............................24

TABLE OF CASES AND AUTHORITIES

Cases

California v. Carney, 471 U.S. 386, 390-91 (1985)..........19

Carroll v. United States, 267 U.S. 132 (1925)..............19

Coolidge v. New Hampshire, 403 U.S. 443 (1971).............20

New York v. Class, 475 U.S. 106 (1986).....................21

Rakas v. Illinois, 439 U.S. 128 (1978).....................16

State v. Ball, 344 N.C. 290 (1996).........................9

State v. Givens, 95 N.C.App. 72 (1989).....................17

State v. Green, 103 N.C.App. 38 (1991).....................20-22

State v. Greenwood, 301 N.C. 705 (1981)....................16

State v. Harris, 71 N.C.App. 141 (1984)....................11

State v. Harvey, 281 N.C. 1 (1972).........................17

State v. Hill, 294 N.C. 320 (1978).........................12

State v. Hooper, ___ N.C. ___, No. 401A03 (2/6/04).........18

State v. Isleib, 319 N.C. 634 (1987).......................19

State v. Jones, 299 N.C. 298 (1980)........................16

State v. Langdon, 94 N.C.App. 354 (1989)...................10,11

State v. Nowell, 144 N.C.App. 636 (2001)...................13

State v. Pulliam, 139 N.C.App. 437 (2000)..................13

State v. Thompson, 73 N.C.App. 60 (1965)...................16

State v. VanCamp, 150 N.C.App. 347 (2002)..................16

State v. White, 311 N.C. 238 (1984)........................16

Statutes

N.C.G.S. § 15A-975.........................................9

N.C.G.S. § 15A-976.........................................9,10,12

N.C.G.S. § 15A-977.........................................9,11,12

T = Transcript

ROA = Record on Appeal

STATEMENT OF THE CASE

The Defendant/ Appellee, Harold Boyd, Jr., filed a motion to suppress evidence. The Honorable Russell J. Lanier, Jr., presided over the motion and at the conclusion of the hearing on October 27, 2003, granted the motion and ordered the evidence suppressed. The State gave notice of appeal to the North Carolina Court of Appeals on October 28, 2003. (ROA pp. 46-47).

Appeal Entries were filed on October 29, 2003 and the transcript was ordered by the trial court and delivered to the transcriptionist on December 2, 2003. The transcript was delivered to Defendant’s previous counsel on December 15, 2003. (ROA pp. 49). The State served the Proposed Record on Appeal upon all adverse parties on January 20, 2004. The Defendant’s current counsel was appointed to pursue the appeal on January 20, 2004. Pursuant to the Stipulation entered into by the parties on February 9, 2004, the Record on Appeal was filed with the Clerk of the North Carolina Court of Appeals on February 16, 2004. The Record on Appeal was docketed on February 18, 2004. The printed Record was mailed to the parties on March 9, 2004. After an extension was granted by the Court of Appeals, the State’s brief was filed on May 11, 2004, which filing was ordered to be deemed timely filed. After an extension was granted by the Court of Appeals, the Defendant/Appellee filed his brief on July 14, 2004.

APPELLEE'S STATEMENT OF THE FACTS

On Sunday, January 19, 2003, Officer James D. Smith of the Wilmington Police Department responded to a 911 hang up and possible assault call that had originated from an apartment located at 4806 Kubeck Court in Wilmington. (T p. 15). The officer heard what he thought was an assault or fight inside the apartment. He knocked on the door and identified himself as a member of the Wilmington Police Department. (T p. 16). Officer Smith did not receive any information that the incident involved drugs in any way.

Officer Smith was not immediately granted admission to the apartment. He went from the front door to the back door seeking to gain admission and check out the situation. (T pp. 16-18). After about 15 minutes, during which time Officer Smith had called for backup, the police were finally admitted to the apartment by Carrie McDonald, the occupant. (T p. 18). Prior to their entry, the officers heard the back sliding glass door open, and believed that a person or persons inside the apartment may have been leaving. The officers were unable to locate any suspect. (T p. 18).

Carrie McDonald was the sole occupant of the apartment when officers entered. When officers asked the name of the person who had been in the apartment fighting with her, she gave the name “James Murphy”. (T pp. 19-20). Based on the conversation Officer Smith had with Ms. McDonald, he did not believe that she was being truthful with him. (T pp. 21-22).

Officer Smith began to look for ways that he could in his mind properly identify the suspect, who he believed had assaulted Ms. McDonald. He saw a Ford Explorer parked outside the rear of the apartment, backed up to a patio outside the sliding glass door. (T p. 20). The truck was about seven or eight feet from the rear of the apartment building, and the back hatch was hanging over the patio at the rear of the apartment. (T pp. 37, 38). The vehicle was not visible from the street, and the officer testified that it was not in a parking lot or other public vehicular area. (T p. 38). There was a patio directly behind the apartment, surrounded by some privacy-type fences that separated the area behind 4806 Kubeck Court from the other apartments in the complex, and then a tree line behind the apartments. (T pp. 38-39).

When Officer Smith saw the Explorer, he asked Ms. McDonald if the truck was “his”, meaning the suspect who he believed had assaulted her. (T pp. 20, 32). She said that it was. (T p. 20).

Officer Smith then asked her for her consent to search the truck and Ms. McDonald said yes. However, Officer Smith admitted on cross examination that Ms. McDonald had never claimed any ownership of the vehicle, and he never ascertained whether she had ever driven or possessed it or whether she had keys to the vehicle. (T p. 32).

Officer Smith then made the decision to search the Explorer in order to “[g]et a positive identification on the assailant.” (T p. 33). When asked on cross examination what specific articulable facts he had to believe that identification on the assailant would be located in the Explorer, the following exchange took place:

Q [Defense Attorney]: Did you have any specific information that that information would be available in that vehicle?

A [Officer Smith]: Possibility that it could be, no, I didn’t, no.

Q: I’m sorry. Did anyone tell you that there would be identification information for the assailant in the vehicle?

A: No.

(T p. 33)(emphasis added).

Officer Smith also testified on cross examination that he did not see any identifying information or contraband in the vehicle in plain view before he entered the Explorer, nor did he see or have reason to believe that the assailant he was looking for was personally in the vehicle. (T p. 33).

Officer Smith went to the rear of the Explorer and saw a jacket inside. He opened the hatch of the Explorer, removed the jacket and began looking through it for identification. He found a jail release slip with the name Harold Boyd, Jr. on it. (T p. 22). Hoping to find even further identification, Officer Smith opened the door of the Explorer and began looking through the center console, where he found crack cocaine, heroin and marijuana. (T pp. 23-24). Finally, Officer Smith opened the glove box and found a rental agreement regarding the Explorer that noted that the truck was rented to an Angela Brunson, who turned out to be the ex-wife of the Defendant, Harold Boyd, Jr. (T p. 50). When Ms. Brunson was interviewed by Officer Vandalen, she indicated to him that she had rented the vehicle for the Defendant. (Id.).

The matter came on for hearing before the Honorable Russell J. Lanier, Jr. on October 27, 2003. The State argued that the motion should be denied by the trial court as being untimely filed and that the Defendant lacked standing. (T pp. 1-2, 14, 64-65). The Defendant argued that he had standing since all the evidence elicited at the voir dire hearing was that the Explorer was in his lawful possession. (T p. 69). The trial court, in its discretion, rejected the State’s contentions on timeliness of the motion and on the issue of standing, and then ruled in favor of the Defendant, finding that the search was a violation of the Fourth Amendment and that the drug evidence discovered in the Explorer by Officer Smith must be suppressed. (T p. 70).

ARGUMENT

I. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY HEARING THE DEFENDANT’S WRITTEN PRETRIAL MOTION TO SUPPRESS.

Standard

A trial court has discretion to hear and determine a pretrial motion to suppress filed by a defendant. N.C.G.S. § 15A-976(c). None of the cases cited by the State in its brief stands for the proposition that a trial court must summarily deny a motion that is filed in an untimely manner. The Court of Appeals review of a discretionary act by a trial court is limited to whether the trial court abused its discretion, or in other words, whether the trial court’s action is “so arbitrary that it could not have been the result of a reasoned decision”. State v. Ball, 344 N.C. 290, 305 (1996). In this instance, the trial court properly exercised its discretion in hearing and granting the defendant’s motion to suppress.

Argument

Motions to suppress in North Carolina trial courts are governed by Article 53 of Chapter 15A of the General Statutes. Article 53 sets out several procedural requirements for such motions, including requirements regarding when they may be properly filed, a requirement that they typically be filed in writing, and a requirement that they be accompanied by an affidavit supporting the allegations in the motion. N.C.G.S. § 15A-975, 976, 977.

In this case, the State contends that the Defendant’s brief was untimely filed and that untimely filing requires summary denial of the motion by the trial court. There are several problems with this contention. First, the State made no showing at the hearing on the motion that it had in fact provided the Defendant with a notice of intent to introduce evidence. The prosecutor once made the unsupported allegation that such notice had been provided. (T p. 2). However, no document was introduced supporting this contention, no stipulation was entered by counsel for the Defendant that it had received such notice, and no fact finding was requested by the prosecutor or made by the trial court regarding the notice of intent to use evidence. N.C.G.S. § 15A-976(b).

Without a proper showing of notice of intent given by the State, the Defendant’s motion to suppress in this case, filed on the day his trial was calendered to begin, was timely under N.C.G.S. § 15A-976. See, State v. Langdon, 94 N.C.App. 354 (1989) (holding in a case not involving notice of intent given by the State that a motion to suppress filed on the day the defendant’s case was calendered for trial but before jury selection was a timely motion).

However, even if the Defendant in this case conceded that his motion to suppress was untimely under N.C.G.S. § 15A-976, the trial court committed no abuse of discretion in hearing and granting the motion. As mentioned above, timely filing of a motion is but one requirement imposed by Article 53. A motion to suppress made in superior court must also be in writing and accompanied by an affidavit. N.C.G.S. § 15A-977(a). However, failure to comply with any of the requirements imposed by Article 53 merely subjects a motion to possible denial. A trial court has the discretion to summarily deny the motion, or on the other hand, to hear the motion and make a ruling on the evidence.

In a case cited by the State in its brief, State v. Langdon, 94 N.C.App. 354 (1989), the Court of Appeals held that “[t]he decision to deny summarily a motion that is not accompanied by an affidavit is vested in the discretion of the trial court. Langdon, 94 N.C.App. at 356, citing State v. Harris, 71 N.C.App. 141 (1984). In fact, N.C.G.S. § 15A-977© indicates that it is never necessary for a trial court to summarily deny a motion to suppress. That section provides that:

“The judge may summarily deny the motion to suppress evidence if:

(1) The motion does not allege a legal basis for the motion; or

(2) The affidavit does not as a matter of law support the ground alleged.”

N.C.G.S. § 15A-977(C)(emphasis added).

Of course, if a judge may summarily deny the motion, he also has the discretion not to. In fact, the only way in which a trial judge’s discretion is limited by Article 53 is regarding situations where a trial judge must summarily grant a motion to suppress. N.C.G.S. § 15A-977(b).

According to the interpretation placed on Article 53 by the State in its brief, a trial judge would have the discretion to hear and determine a motion to suppress which was filed without an affidavit or to hear a motion to suppress that failed to allege a legal basis, but would be required to summarily deny a motion to suppress that was filed more than twenty days from the State’s giving of a notice of intent to use evidence. This result is absurd and in no way intended by the legislature.

The cases cited by the State stand for the proposition that a trial court is permitted to summarily deny a motion to suppress that is untimely under N.C.G.S. § 15A-976. State v. Hill, 294 N.C. 320 (1978). None of the cases stand for the entirely different proposition that a trial court must do so. In this case, the trial court properly exercised its discretion to hear the motion, and that decision was neither arbitrary nor unreasoned. The trial court’s decision to hear the motion, even if untimely filed, should remain undisturbed on appeal.

II. THE TRIAL COURT’S DETERMINATION THAT THE DEFENDANT HAD STANDING TO MOVE TO SUPPRESS THE EVIDENCE FOUND IN THE FORD EXPLORER WAS SUPPORTED BY COMPETENT EVIDENCE AND SHOULD BE UPHELD ON APPEAL.

Standard

When the Court of Appeals reviews a motion to suppress, the review is limited to whether the trial court’s findings are supported by competent evidence and whether those findings support its ultimate conclusions. State v. Pulliam, 139 N.C.App. 437 (2000). In this case, the trial court implicitly found that the Defendant had a sufficient possessory interest and a reasonable expectation of privacy in the Ford Explorer and thus had standing to bring his motion to suppress.

Argument

First it should be noted that the State is apparently arguing in its brief that the trial court erred by not requiring the Defendant to meet some initial burden of proving standing before a hearing on the motion to suppress could begin. The State, in its brief, argued that “because defendant failed to satisfy his initial burden of showing that he had a possessory interest in the Explorer, ... he lacks standing to contest the search ...” (St. Brf. at 17). The contention that a criminal defendant making a motion to dismiss has some burden of proof is not correct.

The burden of proof in a hearing on a motion to suppress rests squarely on the State. In State v. Nowell, 144 N.C.App. 636 (2001) the Court stated:

“When a defendant in a criminal prosecution makes a motion to suppress evidence obtained by means of a warrantless search, the State has the burden of showing, at the suppression hearing, ‘how the [warrantless search] was exempted from the general constitutional demand for a warrant.’”

State v. Nowell, 144 N.C.App. at 642.

In order to proceed to a hearing on the motion, the Defendant is not required to first demonstrate his standing. Rather, the trial court has discretion to first hear the factual allegations and testimony from the witnesses for the State and the defendant before deciding the motion itself or the issue of standing. In this case, the trial judge did just that. He acknowledged the State’s raising of the issue of standing, heard arguments from each party, and then directed the State to proceed by calling its witnesses in an attempt to meet its burden, by stating “Okay. Call your witness.” (T p. 14). The State did not object to this procedure, and proceeded to call its first witness. (Id.). Thus, the trial court appropriately exercised its discretion by not requiring the Defendant to meet some initial burden of proof on the standing issue.

For a defendant to have standing, he must generally have an ownership or possessory interest in the location where the search occurred. The evidence that was elicited at the voir dire hearing on the Defendant’s possessory interest in the Explorer was not in material conflict. Contrary to what the State argues in its brief, the Defendant never denied that he had a possessory interest in the Explorer. In fact, the Defendant’s attorney, in his final arguments addressing the issue of standing stated that the Defendant had standing “unless the vehicle was not lawfully in his possession and the only evidence was that it was.” (T p. 69)(emphasis added).

This contention by the Defendant’s attorney is supported by the evidence elicited at the voir dire hearing. Officer Smith believed that the vehicle was in the lawful possession of the Defendant, based on his discussions with Carrie McDonald. (T pp. 20, 32, passim). Officer Vandalen similarly held the belief that the statements of Carrie McDonald were evidence that the Defendant was in control of the Explorer. Vandalen, discussing the location of the jail release form in the jacket in the rear of the Explorer, stated “I believe it was a Nash County jail release form in the back of this vehicle that she [McDonald] had identified as being the vehicle that he, the suspect was in control of.” (T p. 49).

Officer Vandalen testified that the rental agreement in the Explorer was in the name of Angela Brunson, the Defendant’s ex-wife, and she indicated that she had rented the vehicle for the Defendant, Harold Boyd, Jr. (T p. 50). Officer Smith testified that Carrie McDonald told him that the Defendant’s “aunt rents him vehicles all the time.” (T p. 20).

Neither the Defendant, nor any of the witnesses for the State at the hearing on the motion to suppress presented evidence that was in material conflict with the State’s contention that the Defendant was in lawful possession of the Ford Explorer. In fact, the State itself, when arguing the issue of probable cause, asserted that the officers “knew the assailant was linked with the vehicle”. (St. Brf. p. 6). Therefore, the trial court’s finding that the Defendant had standing to contest the warrantless search of the Explorer was proper and should not be disturbed on appeal.

The State cited State v. Thompson, 73 N.C.App. 60 (1965) in support of its argument that the Defendant in this case lacked standing to contest the search. However, Thompson is entirely distinguishable from this case. In Thompson, the defendant actually testified at the hearing on the motion that he did not own the van, never owned it or anything in it, and did not know what was in it. In this case, the Defendant did not testify at the voir dire and never denied being in lawful possession of the Explorer.

The other cases cited by the State in its brief are similarly distinguishable, in that they involve mere passengers in an automobile[1], stolen property[2], a parent’s garage[3], and the like.

Another problem with the State’s position on standing in this suppression hearing involves whether the State may take inconsistent and contradictory positions in a suppression motion and then at any subsequent trial of the case. Based on the evidence elicited at the voir dire hearing, the State was proceeding against the Defendant based on a theory of constructive possession. The State forecasted no evidence of actual possession nor of manufacturing by the Defendant.

Without actual possession, the State is forced to rely on the theory of constructive possession. A person has constructive possession of an item when the item is not in his physical custody, but he nonetheless is aware of its presence and has the power and intent to control its disposition. State v. Harvey, 281 N.C. 1 (1972). When an item is found on premises under the exclusive control of the defendant, this fact alone may support an inference of constructive possession. However, if the defendant’s control over the premises is nonexclusive, constructive possession may not be inferred without other incriminating circumstances. State v. Givens, 95 N.C.App. 72 (1989).

The inconsistency in the State’s position is that the State contended at the motion hearing that the Defendant did not have standing as an aggrieved party, yet if they had prevailed on the suppression motion, they would have been required by the facts of the case to entirely reverse that position and claim that the Defendant had a sufficient possessory interest in the Explorer such that they would be able to prove to a jury beyond a reasonable doubt that the Defendant had knowledge of the presence of the drugs in the Explorer and the power and intent to control their disposition and use.

Furthermore, the State’s position on the issues of standing and probable cause at the motion hearing itself was inconsistent and contradictory. The State argued that the Defendant failed to demonstrate that he had a sufficient possessory interest in the Explorer such that he had standing. However, when the State argued the issue of probable cause to support the warrantless search of the Explorer, its contention was that the officers “knew that the assailant was linked to the vehicle” and that the officers had sufficient reason to believe that identifying information of the Defendant would be found in the Explorer. (St. Brf. p. 6).

In State v. Hooper, ___ N.C. ___, No. 401A03 (February 6, 2004) the North Carolina Supreme Court admonished the State for taking inconsistent positions in appeals of cases involving felony probation violations heard in the district court. The Court stated that “such reversals can frustrate not only the fair disposition of individual cases but also the effective administration of justice.” Hooper, ___ N.C. at ___. (Slip. Op. at p. 4). Pursuant to the rationale in Hooper, and the authorities cited therein, the State should be estopped from arguing that the Defendant lacked standing while at the same time arguing that probable cause to believe that the Defendant’s identifying information would be in the Explorer and intending to proceed against the Defendant at trial on a theory that by necessity involves the Defendant having a possessory interest in the Explorer.

III. THE TRIAL COURT’S DETERMINATION THAT THE SEARCH OF THE FORD EXPLORER WAS A VIOLATION OF THE DEFENDANT’S FOURTH AMENDMENT RIGHTS WAS SUPPORTED BY COMPETENT EVIDENCE AND SHOULD BE UPHELD ON APPEAL.

Argument

The search of the Explorer in this case was not supported by probable cause. No warrant was obtained. No other exception to the warrant requirement is applicable. The evidence discovered in the Explorer was properly suppressed by the trial court.

The Fourth Amendment generally requires police to secure a warrant before conducting a search. California v. Carney, 471 U.S. 386, 390-91 (1985). It is undisputed that no warrant was obtained in this case. However, case law has set out a number of narrowly drawn exceptions to the warrant requirement. One such exception, recognized by the United States Supreme Court many years ago, is the automobile exception. Carroll v. United States, 267 U.S. 132 (1925).

The automobile exception has two requirements that can eliminate the need for a warrant. First, there must be probable cause to believe that the automobile contains evidence of a crime. Second, the automobile must be in a public place. State v. Isleib, 319 N.C. 634 (1987). In this case, neither requirement of the automobile exception has been met.

The Ford Explorer was not in a public place. It was not on a street, or highway or in a public vehicular area. It was parked behind a private apartment, with the rear of the vehicle overhanging the patio, seven or eight feet from the rear door, in between privacy fences that separated the premises from the other apartments on Kubeck Court. (T pp. 37-39). In this respect, this case is similar to the United States Supreme Court’s decision in Coolidge v. New Hampshire, 403 U.S. 443 (1971)(holding the automobile exception inapplicable to a vehicle parked in the defendant’s driveway on private property and within the curtilage of the defendant’s home).

Even more importantly, the search of the Explorer in this case was based on Officer Smith’s hunch and nothing more. Officer Smith indicated that he was hoping to find identifying information in the vehicle he believed belonged to the person who had been in the apartment with Ms. McDonald. When asked directly whether he had any information whatsoever that would have supported the belief that identification materials related to the alleged assailant were in the Explorer, he said no. “Possibility that it could be, no, I didn’t, no.” (T p. 33).

A possibility that information about the alleged assailant’s identity might have been in the car is not probable cause supporting a search. It is a hunch, and only a hunch. There also existed the possibility that the alleged assailant might have gone into any of the other nearby apartment units at Kubeck Court, but certainly this possibility is not sufficient probable cause to allow Officer Smith to barge into any of those neighboring apartments without a warrant in order to search for the assailant.

This case is similar to State v. Green, 103 N.C.App. 38 (1991). In Green, a state trooper stopped the defendant in a white Toyota on suspicion of impaired driving. The only reason for the stop was weaving the trooper observed. The trooper had not received any information that the car had been stolen, was involved in drug activity or in any other way involved in a crime.

After speaking with the defendant inside his patrol car, the trooper no longer believed that the defendant was driving while impaired. Green, 103 N.C.App. at 41. However, the trooper had been unable to obtain confirmation of the defendant’s identity from dispatch, and the responses that the defendant had given the officer concerning his identity caused the officer to believe that the defendant was lying to him about who he was.

In an effort to discover the identity of the defendant, the trooper told the defendant to wait in the passenger seat of his patrol car. The trooper then approached the white Toyota, opened the passenger door and opened the glove box. Green at 41. The trooper believed he would discover the defendant’s drivers licence in the glove box, but instead he discovered plastic bags containing heroin and cocaine. Id.

The Court of Appeals concluded that the search of the glove box in Green was not a minimal intrusion and violated the Forth Amendment. Green at 45. The evidence discovered in the glove box was ordered suppressed.

The Court in Green distinguished New York v. Class, 475 U.S. 106 (1986), a case involving an officer who reached through a window to remove papers concealing the vehicle identification number. The officer’s actions in Class were not unreasonable because he “did not reach into any compartments or open any containers.” Class, 475 U.S. at 118.

In this case, as in Green, officers were involved in citizen encounters completely unrelated to drug activity. As the officers in this case and in Green continued to investigate, they began to believe that they were being lied to concerning the identity of the suspects in each case. Hoping to ascertain the true identity of the suspects, the officers surmised that identification materials might be located in the interior of the automobiles linked to the defendants. The officers, on a hunch, opened the cars looking into glove boxes and center consoles searching for identification and eventually found drugs instead. Neither in this case, nor in Green, was the safety of the officers involved. The intrusions in each case were not minimal. An officer’s hunch, and not probable cause, was all that supported the searches.

The vehicle in this case was not in a public place. There was only a hunch, and not probable cause, to believe that the Ford Explorer contained identification concerning the Defendant. Substantial and competent evidence elicited at the suppression hearing supports both of these contentions. The evidence supports

the trial court’s ultimate conclusion that the search was a violation of the Fourth Amendment. The Court of Appeals should leave the trial court’s ruling undisturbed on appeal.

CONCLUSION

For the reasons stated above, the Defendant/Appellee respectfully requests that the Court of Appeals leave undisturbed the discretionary ruling of the trial court granting the Defendant’s motion to suppress.

Respectfully submitted, this the 14th day of July, 2004.

____________________________

JEFFREY EVAN NOECKER

Attorney for Defendant/Appellee

107-A North Second St.

Wilmington, NC 28401

(910) 762-8600

NC Bar Number 19195

CERTIFICATE OF FILING AND SERVICE

The undersigned attorney hereby certifies that he caused the original of the DEFENDANT/ APPELLEE'S BRIEF to be filed pursuant to Rule 26 of the North Carolina Rules of Appellate Procedure by sending the document by United States Mail, postage prepaid, and addressed to the following:

North Carolina Court of Appeals

Office of the Clerk

P.O. Box 2779

Raleigh, North Carolina 27602

The undersigned attorney hereby certifies that he has served a copy of the DEFENDANT/ APPELLEE'S BRIEF attached hereto by United States Mail, postage prepaid, and addressed to the following:

Roy A. Cooper, III

Attorney General

c/o Daniel P. O’Brien, Assistant

9001 Mail Service Center

Raleigh, North Carolina 27699-9001

This is the 14th day of July, 2004.

____________________________

JEFFREY EVAN NOECKER

Attorney for Defendant/Appellee

107-A North Second St.

Wilmington, NC 28401

(910) 762-8600

NC Bar Number 19195

-----------------------

[1] Rakas v. Illinois, 439 U.S. 128 (1978); State v. VanCamp, 150 N.C.App. 347 (2002).

[2] State v. White, 311 N.C. 238 (1984); State v. Greenwood, 301 N.C. 705 (1981).

[3] State v. Jones, 299 N.C. 298 (1980).

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